Cap Sante Vue, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1968

172 N.L.R.B. 1558 (N.L.R.B. 1968)

1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cap Saute Vue, Inc. and Building Service Em-
ployees ' International Union , Local 120, affiliated
with Service Employees ' International Union,
AFL-CIO. Case 19-CA-4038
August 15, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a charge filed by Building Service Em-
ployees' International Union, Local 120, affiliated
with Service Employees' International Union,
AFL-CIO, herein called the Union, the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 19, issued a com-
plaint dated June 6, 1968, against Cap Sante Vue,
Inc., herein called Respondent, alleging that
Respondent has engaged in, and is engaging in, un-
fair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Co-
pies of the charge and of the complaint and notice
of hearing were duly served on Respondent and the
Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on May 16,
1968, the Union was duly certified as the exclusive
bargaining representative of Respondent's em-
ployees in the unit found appropriate' and that
since on or about May 20, 1968, Respondent has
refused and is refusing to recognize and bargain
with the Union as such exclusive bargaining
representative, although the Union has requested it'
to do so. On June 7, 1968, Respondent filed its
answer, admitting in part, and denying in part, the
allegations of the complaint, presenting an affirma-
tive defense, and requesting that the complaint be
dismissed
On June 17, 1968, the General Counsel filed with
the Board a motion for summary judgment and a
memorandum in support thereof, submitting that
Respondent's answer raises no substantial issue as
to any material fact and moving that the proceeding
be transferred to the Board. Thereafter, on June
18, 1968, the Board issued an Order Transferring
Proceeding to the Board and Notice To Show
Cause why the General Counsel's motion for sum-
' Case 19-RC-4650 (not published in NLRB volumes)
2 Decision and Direction of Election issuCd March 29, 1968, in Case
I9-RC-4650
' Pittsburgh Plate Glass Company v N L R B , 313 U S 146, The Shef-
field Corporation, 163 NLRB 188
In its opposition to motion for summary judgment, Respondent requests
a hearing, contending that it has new evidence unavailable at the time of
the representation hearing Respondent has discovered that the religious
mary judgment should not be granted. On July 2,
1968, Respondent filed a memorandum in opposi-
tion to motion for summary judgment
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
RULING ON THE MOTION FOR SUMMARY JUDGMENT
In its opposition to the General Counsel's motion
for summary judgment, Respondent admits its
refusal to bargain with the certified bargaining
representative of its employees. However, as an af-
firmative defense, Respondent contends that an
order requiring it to bargain with the complaining
Union would infringe upon its stockholders' reli-
gious liberties and constitutional rights. By raising
this argument, Respondent is raising no issues
requiring a hearing, because Respondent's posi-
tion was fully considered by the Regional Director
in the representation proceeding 2 In that proceed-
ing, the Regional Director found Respondent's ar-
gument to be lacking in merit. On April 10, 1968,
Respondent filed with the Board a request for
review of the Regional Director's Decision; such
request was denied by the Board on April 23, 1968.
In its attempt to obtain a hearing, Respondent is
attempting to relitigate issues decided by the
Board in the earlier representation proceeding It is
well established that, in the absence of newly
discovered or previously unavailable evidence, a
respondent is not entitled to relitigate in a Section
8(a)(5) proceeding issues which were or could
have been raised in a related representation
proceeding. Respondent's contention that the items
described in its memorandum in opposition to the
motion for summary judgment constitute new and
previously unavailable evidence requiring a hearing
is without merit.;
All material issues having been either decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner Accordingly, the General
Counsel's motion for summary judgment is granted.
On the basis of the record before it, the Board
makes the following
beliefs of its stockholders would not preclude it from negogiating with
members of a committee constituted solely of Respondent's employees so
long as such committee does not represent an organization of employees
other than Respondent's employees Respondent still maintains, however,
that it is precluded from bargaining with the complainant Union We find
that the offered evidence is in the nature of a further refinement of the
same basic argument raised in the representation proceeding and presents
nothing that has not been previously litigated and decided
172 NLRB No. 176
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
CAP SANTE VUE, INC. 1559
Respondent, Cap Sante Vue, Inc , is a corpora-
tion engaged at Anacortes, Washington, in the
operation of a proprietary nursing home. During
the year 1967, it had a gross volume of business in
excess of $120,000; and, during the same period, it
had purchases of food and supplies from interstate
commerce in an amount valued in excess of $5,000.
Respondent is now, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein, the following em-
ployees have constituted and now constitue a unit
appropriate for purposes of collective bargaining
within the meaning of the Act.
All employees employed by Respondent at its
Anacortes, Washington, nursing home, exclud-
ing office clerical employees, registered nurses,
licensed practitioners, professional employees,
confidential employees, guards, and super-
visors as defined in the Act.
2. The certification
On May 8, 1968, a majority of the employees in
said unit, voting in a secret ballot election con-
ducted under the supervision of the Regional
Director for Region 19 of the National Labor Rela-
tions Board, designated the Union as their
representative for the purposes of collective bar-
gaining with Respondent, and on May 16, 1968, the
Regional Director certified the Union as the exclu-
sive bargaining representative of all the employees
in said unit, and the Union continues to be such
representative.
B. The Request To Bargain and Respondent's
Refusal
On or about May 17, 1968, the Union requested
and continues to request that Respondent bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
May 20, 1968, Respondent refused, and continues
to refuse, to bargain collectively with the Union as
exclusive bargaining representative of the em-
ployees in said unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative
of Respondent's employees in the appropriate unit
described above; that the Union at all times since
May 16, 1968, has been and now is the exclusive
bargaining representative of all the employees in
the aforesaid unit, within the meaning of Section
9(a) of the Act, and that Respondent has since May
20, 1968, refused to bargain collectively with the
Union as the exclusive bargaining representative of
its employees in the appropriate unit. By such
refusal, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section 1, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (I) of the Act, we shall order that it
cease and desist therefrom and, upon request, bar-
gain collectively with the Union as the exclusive
representative of all employees in the appropriate
unit and, if an understanding is reached, embody
such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times
material herein , an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All employees employed by Respondent at its
Anacortes, Washington, nursing home, excluding
office clerical employees , registered nurses,
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
licensed practitioners , professional employees, con-
fidential employees , guards, and supervisors as
defined in the Act , constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since May 16 , 1968, the Union has been and
now is the certified and exclusive representative of
all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about May 20 , 1968, and at
all times thereafter , to bargain collectively with the
Union as the exclusive bargaining representative of
all the employees of Respondent in the aforesaid
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and ( 1) of the Act.
6 By the aforesaid refusal to bargain , Respon-
dent has interfered with, restrained , and coerced,
and is interfering with, restraining , and coercing, its
employees in the exercise of the rights guaranteed
to them in Section 7 of the Act and has thereby en-
gaged in , and is engaging in, unfair labor practices
within the meaning of Section 8(a)(I) of the Act.
7 The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Cap Sante Vue, Inc , Anacortes, Washington, its of-
ficers, agents, successors, and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Building Service
Employees' International Union, Local 120, af-
filiated with Service Employees' International
Union, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit.
All employees employed by Respondent at its
Anacortes, Washington, nursing home, exclud-
ing office clerical employees, registered nurses,
licensed practitioners, professional employees,
confidential employees, guards, and super-
visors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed to them by Section 7
of the Act
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
(b) Post at its Anacortes, Washington, place of
business copies of the attached notice marked "Ap-
pendix."4 Copies of said notice, on forms provided
by the Regional Director for Region 19, after being
duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
• in the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with Building Service Employees' Interna-
tional Union, Local 120, affiliated with Service
Employees' International Union, AFL-CIO, as
the exclusive representative of the employees
in the bargaining-unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive represen-
tative of all our employees in the bargaining
unit described below with respect to rates of
pay, wages, hours, and other terms and condi-
CAP SANTE VUE, INC.
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All employees employed at our Anacortes,
Washington, nursing home, excluding of-
fice clerical employees, registered nurses,
licensed practioners, professional em-
ployees, confidential employees, guards,
and supervisors as defined in the Act.
CAP SANTE VUE, INC.
(Employer)
Dated By
(Representative ) (Title)
1561
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If they have any question concerning this notice
or compliance with its provisions, they may com-
municate directly with the Board 's Regional Office,
327 Logan Building , 500 Union Street, Seattle,
Washington 98101, Telephone 583-4532.
354-126 O-LT - 73 pt. 2 - 27